PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1086

CRAIG CUNNINGHAM, on behalf of himself and all others similarly situated,

Plaintiff – Appellant,

v.

DEBORAH S. LESTER, in her individual capacity; NAOMI E. JOHNSON, in her individual capacity; JESSICA JOLLIFFE, in her individual capacity,

Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Deborah K. Chasanow, Senior District Judge. (1:18-cv-03486-DKC)

Submitted: January 29, 2021 Decided: March 4, 2021

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Diaz joined.

Aytan Y. Bellin, BELLIN & ASSOCIATES LLC, White Plains, New York, for Appellant. Robert K. Hur, United States Attorney, Baltimore, Maryland, Jane E. Andersen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellees. WILKINSON, Circuit Judge:

Craig Cunningham, the named party in this putative class action lawsuit, filed a

complaint against federal employees Deborah Lester, Naomi Johnson, and Jessica Joliffe

in their individual capacities, alleging violations of the Telephone Consumer Protection

Act (TCPA). The district court granted the defendants’ motion to dismiss, finding that the

federal government was the real party in interest and that the government had not waived

its sovereign immunity. Because the defendants were acting in the course of their official

duties and because the United States is the real party in interest, we affirm the district

court’s dismissal of this case on sovereign immunity grounds. Indeed, absent sovereign

immunity, federal employees would be swept up in endless suits for damages for nothing

more than doing their jobs.

I.

The Affordable Care Act (ACA) obliges the U.S. Department of Health and Human

Services, Centers for Medicare & Medicaid Services (CMS), to “establish a system” for

ensuring that applicants “receive notice of eligibility for an applicable State health subsidy

program.”

(a), (b)(2), (e). To fulfill this obligation, CMS partnered

with a private company that possessed the technological capacity to help CMS satisfy its

statutory mandate in a cost-effective manner. This firm later merged with General

Dynamics Informational Technology, Inc. (GDIT), which inherited the contractual

relationship with CMS. The contract formally defining this public-private partnership

required GDIT to support CMS’s contact operations by calling individuals to inform them

of their eligibility for participation in the subsidized health insurance plans offered through

2 the ACA’s health insurance exchanges. At the relevant time, the defendants worked for

CMS in connection with the CMS-GDIT contract. Lester was designated the “Contracting

Officer,” Johnson was the deputy director of the CMS Call Center Operations group, and

Joliffe worked within the group.

Pursuant to the terms of the CMS-GDIT contract, the defendants provided GDIT

with a script that read as follows:

Hello, this is an important message from healthcare.gov. The deadline to enroll in a 2016 health insurance plan is coming soon. You may be able to qualify for financial help to make health insurance more affordable. With financial help, most people can find plans for $75 or less per month. Visit healthcare.gov today to see how much you can save. If you have questions, you can call the health insurance marketplace to talk to a trained enrollment specialist at 1-800-318-2596. That’s 1-800-318-2596. We are available 24 hours a day and the call is free. Don’t forget, the deadline to enroll is Tuesday, December 15. If you’ve already taken action, and have 2016 health coverage, please ignore this message. Thank you. Goodbye.

But rather than instruct GDIT to cause the above message to be delivered through a series

of personal phone calls, the defendants instead instructed GDIT to pre-record the message

using artificial voice technology and to deliver it to approximately 680,000 individuals—

none of whom had previously consented to receive such a message—through the use of

GDIT’s automatic telephone dialing system. GDIT followed these instructions to the letter.

Craig Cunningham, a recipient of one of GDIT’s “robocalls,” filed a putative class-

action lawsuit seeking damages and an injunction against GDIT, alleging that its automated

phone call constituted a violation of the TCPA. In 2018, this court affirmed the district

court’s dismissal of the suit for lack of subject matter jurisdiction. Cunningham v. General

Dynamics Information Technology, Inc.,

(4th Cir. 2018) (hereinafter,

3 “Cunningham I”). The panel decided the case, in relevant part, under Yearsley v. W. A.

Ross Construction Co.,

(1940), where the Supreme Court held that government

contractors are immunized “from suit when the government authorized the contractor’s

actions and the government validly conferred that authorization.”

(citing Yearsley, 309

U.S. at 20–21 (1940)). Cunningham’s subsequent petition for certiorari was denied.

Cunningham, however, was undeterred. Before long, he had returned to district

court with a new complaint. But this new complaint bore certain striking similarities to the

old one. The underlying injuries it alleged were substantially the same. And like the old

complaint, the new complaint sought relief under the TCPA. The crucial distinctions lay

in the caption and in the remedy sought. For defendant GDIT, Cunningham had substituted

defendants Lester, Johnson, and Joliffe, not as CMS officials, but solely in their individual

capacities. He also no longer sought an injunction but requested only monetary relief.

While acknowledging the ingenuity of Cunningham’s reframing of the case,

Cunningham v. Lester,

, at *6 (D. Md. Jan. 22, 2020), the district court

nevertheless insisted on “look[ing] beyond the form of the complaint” to determine

whether, despite the above changes, the federal government remained the real party in

interest.

at *3 (quoting Martin v. Wood,

, 195–96 (4th Cir. 2014)).

Ultimately, the court concluded that it did. Rejecting Cunningham’s argument that the

Supreme Court’s decision in Lewis v. Clarke,

(2017), had effectively

overruled this circuit’s opinion in Martin v. Wood, the district court analyzed the

complaint’s allegations under Martin’s five-factor test. Under Martin, it found that not just

a majority, but all five of the relevant factors militated in favor of recognizing the federal

4 government as the real party in interest. This finding merged the new case into the old one,

compelling the district court to dismiss Cunningham’s complaint, as before, for lack of

subject matter jurisdiction. A court, it explained, was constitutionally powerless to proceed

where the federal government qua sovereign had not waived its immunity from suit.

Cunningham filed this timely appeal. We review the district court’s dismissal on these

grounds de novo. Pitt County v. Hotels.com, L.P.,

(4th Cir. 2009).

II.

Sovereign immunity from private suit is a weighty principle, foundational to our

constitutional system. Pennhurst State School & Hosp. v. Halderman,

(1984)

(citing Hans v. Louisiana,

(1890)). Beginning with Hans, the federal

judiciary has long taken care to respect the limitations this doctrine imposes on its own

jurisdiction, and not without reason. The government’s sovereign immunity is both a

testament to its dignity and a guarantor of its ability to act effectively in furtherance of the

common good. See Seminole Tribe of Florida v. Florida,

(quoting P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

(1993)); Lizzi v.

Alexander,

(4th Cir. 2001).

In this spirit, the Supreme Court has long held that any waiver of sovereign

immunity must be “unequivocally expressed in statutory text.” FAA v. Cooper,

(2012). This standard is so central to sovereign immunity jurisprudence that the

Court explicitly and routinely construes ambiguous text so as to obviate any inference of

waiver.

The conduct of any such analysis is unnecessary here, however, because the

5 Supreme Court has already settled the question of whether the TCPA contains a waiver of

sovereign immunity. It does not. Campbell-Ewald Co. v. Gomez,

(2016)

(“The United States and its agencies . . . are not subject to the TCPA’s prohibitions because

no statute lifts their immunity.”). The panel in Cunningham I reaffirmed this binding

precedent, Cunningham I,

, 647–48, and neither party in the present action

contests its validity or applicability here.

Because sovereign immunity would indisputably bar Cunningham’s suit if it were

brought against the government, identifying the real party in interest is now the decisive

question. If, despite the form of Cunningham’s caption, the government is the real party

in interest, then this court is not a constitutionally proper forum for consideration of the

allegations he raises in his complaint.

III.

If there is one unbroken thread in real-party-in-interest jurisprudence, it is a general

refusal to privilege the form of a complaint over its substance. Pennhurst illustrates this

tradition. In Pennhurst, the plaintiffs alleged that state officials employed at Pennhurst

State School and Hospital failed to satisfy their state law obligations as to the conditions

prevailing at that facility, and they sought relief in federal court. Pennhurst State School

& Hosp. v. Halderman, 465 U.S 89, 92 (1984). Sensitive to the sovereign immunity issues

raised by this complaint, the Court underscored a distinction between relief that is truly

sought against state officials and relief that, although nominally sought against state

officials, is actually sought against the State itself. Pennhurst, 465 U.S. at 100–01. “The

general rule,” the Court explained, “is that relief sought nominally against an officer is in

6 fact against the sovereign if the decree would operate against the latter.”

at 101 (quoting

Hawaii v. Gordon,

(1963) (per curiam)). Sovereign immunity bars suit in

the latter instance “regardless of whether [the plaintiff] seeks damages or injunctive relief.”

(emphasis added). Aiming to remain “[in] touch with reality,” the Court focused

on the “effect of the relief sought”—“that a major state institution be closed and smaller

state institutions be created and expansively funded.”

. It determined that to

characterize such a judgment as not “operat[ing] against the State,” especially where the

state officials were acting solely in their official capacities, “would make the law a

pretense.”

(emphasis in original). Subsequent Supreme Court precedent has reinforced,

rather than eroded, these central commitments. See, e.g., Idaho v. Coeur d’Alene Tribe of

Idaho,

(1997); Bender v. Williamsport Area Sch. Dist.,

(1986).

Our own court embraced this principle in Lizzi v. Alexander,

, 136–37

(4th Cir. 2001). Later, in Martin v. Wood,

(4th Cir. 2014), it even

articulated a five-factor test synthesizing Pennhurst and its offspring into a structured

inquiry. Both Lizzi and Martin attended closely, for example, to whether the named

defendants committed the complained-of conduct in the course of performing their official

duties, or whether they acted ultra vires or in pursuit of private interests. Lizzi,

; Martin,

. The Martin test considers, specifically, the following

questions:

(1) were the alleged unlawful actions of the state officials tied inextricably to their official duties; (2) if the state officials had authorized the desired relief at the outset, would the burden have been borne by the State; (3) would a

7 judgment against the state officials be institutional in character, such that it would operate against the State; (4) were the actions of the state officials taken to further personal interests distinct from the State’s interests; and (5) were the state officials’ actions ultra vires.”

(internal quotations and citations omitted).

Cunningham, however, contends that the Martin court’s interpretation of the real-

party-in-interest inquiry was fatally flawed, and that the Supreme Court’s decision in Lewis

v. Clarke proves it. In Lewis, the Court held that sovereign immunity did not shield a

limousine driver employed by a tribal casino from a suit against him in his individual

capacity for damages related to an accident he caused while transporting clients of the

casino. Cunningham leans heavily on the Court’s statement that “[p]ersonal-capacity suits

. . . seek to impose individual liability upon a government officer for actions taken under

color of state law” and that such officers “come to court as individuals . . . and the real

party in interest is the individual, not the sovereign.” Lewis,

. As long

as the complaint names an individual in her personal capacity and seeks monetary relief

not requiring the transfer of government property, Cunningham infers, sovereign immunity

represents no jurisdictional bar.

We disagree. Read properly, the above passage is a statement about what is true of

genuine personal-capacity suits, where, for example, individuals come to court as the real

party in interest. Cunningham, however, misinterprets it as a statement about what the

Court believes is true of any action pled as a personal capacity suit for monetary damages.

Such a misinterpretation collapses the distinction between genuine and nominal personal-

capacity suits and, rather conveniently for Cunningham’s case, begs the question at issue

8 in favor of the very formalism that the Court’s well-established jurisprudence has long

disavowed. See Coeur d’Alene,

(“The real interests served by the Eleventh

Amendment are not to be sacrificed to elementary mechanics of captions and pleading.”).

The context makes this especially clear. The Lewis Court does not merely note the

caption and the type of remedy sought, and then rest its sovereign immunity analysis on

those facts alone. Rather, almost immediately after the aforementioned passage, the Court

states that “there is no reason to depart from these general rules” (emphasis added), and

then lists the facts it considers pertinent to their application. Lewis,

.

These facts include that Clarke was operating a vehicle in the scope of his employment,

that the tort suit took as its object his “personal actions,” and that the money judgment

would not “operate against” the tribe.

Consideration of these factors indicates the

operation of a broader standard than the one Cunningham purports to distill from Lewis

and that standard is entirely consistent with our circuit’s precedent in Martin. Ultimately,

Lewis does not purport to break from the Court’s substantive approach to its real-party-in-

interest jurisprudence, and Cunningham supplies us with no compelling reason to extract

any contrary holding.

IV.

What remains, then, is the practical question of whether the defendants or the

government is the real party in interest. Under our precedent in Martin, and the well-

established tradition it embodies, this inquiry is not a difficult one. The statutory mandate

at the center of this case is the requirement that CMS “establish a system” for ensuring that

applicants “receive notice of eligibility for an applicable State health subsidy program.”

9

(a), (b)(2), (e). Unlike the defendant in Lewis, who was haled into court

on account of his personal negligence, the defendants, as CMS employees, were plainly

acting in furtherance of this federal mandate when they signed the contract with GDIT and

instructed GDIT to place its automated calls. The defendants’ actions are simply not

otherwise intelligible. The possibility that the defendants may have been acting ultra vires

is not alleged by either party. And the notion that the defendants may have been acting in

their own private interest is not plausible. Furthermore, there is no indication in Martin,

or in the pertinent Supreme Court precedent, that any of these inquiries into the substance

of the case should be relaxed or omitted simply because Cunningham is not seeking an

injunction.

And to consider, even briefly, against whom the judgment would operate and on

whom its burden would fall reveals the enormity of what Cunningham is asking this court

to do. Though the money judgment would nominally fall on the defendants alone,

remaining tethered to reality—as Pennhurst requires—means that we cannot avert our eyes

from the effects that such a judgment will have on the State. It is commonly observed,

after all, that the State is not a natural person and that its power to act derives solely from

the efforts of its agents. See, e.g., Pennhurst,

n.25; Berkman v. United

States,

(4th Cir. 1992). If successful, Cunningham’s putative class

action suit could saddle three CMS employees, whose actions conformed to their official

duties and statutory mandate, with a judgment worth hundreds of millions of dollars. J.A.

14–15. While CMS’s statutory mandate would remain, the ability of any CMS employee

to do what Campbell clearly permits the State to do—that is, to act in ways otherwise barred

10 by the TCPA—would vanish. Allowing Cunningham’s case to proceed would reduce

Campbell to a practical nullity.

That CMS would, consequently, be forced between a rock and a hard place is

evident. On the one hand, CMS would be bound by a statutory mandate requiring it to

contact hundreds of thousands, if not millions, of people. On the other hand, concern that

its employees not face staggering liability would prevent CMS from using the tools and

techniques well-adapted to satisfying that mandate. These tools and techniques include the

use of cost-effective communications technology that many government agencies already

use to comply with other congressional mandates, as well as contractual partnerships that

would allow the government to leverage the advanced capacities and expertise of the

private sector. See Letter from Wilbur Ross, Sec’y, Dep’t of Commerce, to Ajit Pai,

Chairman, FCC (Apr. 4, 2019) (noting that the Census Bureau and other federal agencies

“use contractors to complete critical missions” requiring large-scale communication). The

potential burdens faced by the sovereign tribe in Lewis were not at all comparable, in kind

or degree, to the kind that CMS faces here. Attended by the immense costs of

implementing a functional replacement, the viability of the CMS-GDIT contract would be

the first and most immediate casualty.

But it would not be the last. Allowing Cunningham to sidestep the substantive focus

of sovereign immunity doctrine through the subterfuge of artful pleading would open the

door to repeat plays, in which the same pleading tactics are used, again and again, to

hamstring other government agencies. The public-private partnerships that agencies

commonly rely on to meet their statutory mandates would become vulnerable to attack by

11 litigants who, relying on this case, would artfully plead a waiver of sovereign immunity

where no such congressional intent was ever expressed. This would reduce not just

Campbell, but sovereign immunity writ large, to a nullity, exactly the step against which

Pennhurst warned. Pennhurst,

. The threat of such a heavy imposition on

the executive’s power to act in furtherance of legislative commands is a primary reason the

Court has adhered to the effects-oriented approach to the real-party-in-interest inquiry, the

approach we now apply in the case at bar.

We recognize the similarity between the claims in this litigation and the claims that

Cunningham brought in his earlier lawsuit. We also recognize that both suits may have

been motivated by disagreements with the policy judgments embodied in the ACA. And

finally, we recognize that robocalls can be obnoxious, something recipients often choose

to terminate at their inception. But to impair the ability of the government (or its

contractors) to deliver telephonically a message on public health is well beyond judicial

competence. The proper forum for “litigating” any such grievances is not a federal

courtroom; it is the court of public opinion and the legislative branch. The Supreme Court’s

admonition that “considerations of policy cannot override the constitutional limitation on

the authority of the federal judiciary to adjudicate suits” both instructs and binds us here.

Pennhurst,

.

V.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

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